Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.1218 of 2012 ====================================================== Pujari Singh, son of Janardan Singh, resident of village-Jaitpur, P.S.-Barhia, District-Lakhisarai. .... .... Petitioner/s Versus 1. The State of Bihar through the Principal, Home (Police), Government of Bihar, Patna. 2. The Principal, Home (Police), Government of Bihar, Patna. 3. Under Secretary, Home (Police), Government of Bihar, Patna. 4. The District Magistrate, Lakhisarai. 5. The Superintendent of Police, Lakhisarai. 6. The Superintendent of District Jail, Lakhisarai. .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Subodh Kumar Jha, Advocate. For the Respondent/s : Mr. R.B. Mahto, A.G. CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 5. 30-01-2013 Instant petition purported to be under Article 226 of the Constitution has been filed on behalf of Pujari Singh for quashing of his detention passed vide order dated 28.08.2012 in accordance with Section 12(2) of the Bihar Control of Crimes Act by the District Magistrate, Lakhisarai, approved by the State Government in accordance with Section 12(3) of the Bihar Control of Crimes Act as well as order dated 04.10.2012
Legal Reasoning
confirming the order dated 28.08.2012 in accordance with Section 21 of the Act and further to direct to release. 2. Taking into account criminal antecedent of the petitioner coupled with his continues indulgence in criminal -2- activities attracting institution of three more recent cases bearing Barhia P.S. Case No.24/2011, Barhia P.S. Case No.34/2011 and Barhia P.S. Case No. 83/2012, on the basis of the information furnished by Supervising Authority that means to say S.P., Lakhisarai. The learned District Magistrate took into consideration the status of the petitioner to be languishing under judicial custody and further was taking every possible steps for getting himself released on bail and further finding that his presence will adversely affect the public order hence order for preventive detention vide order dated 28.08.2012 giving an opportunity to the petitioner to file representation petition before the State Government which was accordingly filed after approval of the order as well as before confirmation that means to say on 15-09-2012 and which after being considered and rejected so communicated on 04-10-2012 also was served upon an order passed in accordance with Section 20(1) of the Act. 3. It has been submitted on behalf of petitioner that though the order is expected to be passed upon subjective satisfaction of the Detaining Authority which happens to be out of judicial purview but the process of subjective satisfaction is within the domain of judicial scrutiny. It has further been submitted that there happens to be inordinate delay in -3- consideration of representation of the petitioner. It has further been submitted that mere having criminal antecedent will not justify the order of preventive detention unless there happens to be sufficient material to so that presence of the petitioner will be hazardous to the public order which the order impugned lacks. Therefore, detention of the petitioner is not at all found to be consistent with the requirement. 4. At the other hand, the learned A.G. opposed the submission and submitted that from the order impugned, it is evident that there happens to be full application of mind to the effect whether petitioner’s indulgence after being released on bail will adversely affect upon the public order which can be gather from the criminal antecedent as well as follow up action which is to be taken up by the detenu leading to public disorder. The factual as well as legal aspect has properly been taken into account by the competent authorities. Then submitted that the order of confirmation purported to be under Section 21 of the Act has to be based upon the findings recorded by the Advisory Board. So far present case is concerned, the Advisory Board had concurred and resolved not to interfere with the finding hence it could not be said that the order dated 04.10.2012 happens to be illegal or contrary to the spirit of law. -4- 5. Preventive detention, is an exception to Part-III of the Constitution where under fundamental right of a citizen has been identified, recognized and further, an obligation has been put upon State to preserve the same. In the aforesaid background an exception has been brought up for curtailment of fundamental right of a citizen that means to say of an individual when his presence has become unsafe for the community, society, State or Nation and that happens to be reason behind presence of Article 22 in the Constitution. However, the forefathers were apprehensive over its misuse consequent thereupon certain limitations in its stringent way has been prescribed which too has been taken into account in a decision reported in (2005) 10 SCC 97 (Union of India and Another Versus Chaya Ghoshal (SMT) and Another. “15. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday and Kubic Darusz v. Union of India.) But at the same time, a person’s greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a -5- to the written “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty. (See Ayya v. State of U.P.) To lose our country by a scrupulous adherence law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State’s security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters. to create a 16. Coming to the question whether the representation to the President of India meets with the requirement of law, it has to be noted that in Raghavendra Singh v. Supdt., Distt. Jail, Kanpur and Rumana Begum v. State of A.P. it was held that a representation to the President of India or the Governor, as the case may be, would amount to representation to the Central Government and the State Government respectively. But this cannot be allowed smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. Where the order (grounds) of detention specifically indicates the authority to whom the representation is to be made, such indication is also part of the move to facilitate an expeditious consideration of the representations actually made. 17. While dealing with a habeas corpus application, undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings, the court has to take serious note of unclean approach. Whenever a representation is made to the President or the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not to the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day-to-day administration at respective levels is carried on by the Heads of the Department- Ministries concerned and designated officers who -6- alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or is interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the really concerned authorities and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his is not representation to an authority which directly/immediately such with consideration”. concerned 6. Having the detenu under judicial custody will not defeat application of preventive detention, however time-to-time certain embargo has been laid down by a series of judicial pronouncement in a way for proper appreciation and application. The matter had already been stood decided by a Constitutional Bench in Haradhan Saha Versus State of West Bengal reported in (1975) 3 SCC 198 the relevant para happens to be 34. “34. …where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the detaining the part of authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or public order.” 7. Subsequently followed in T.V. Sravanan v. State reported in (2006) 2 SCC 664, A Shanthi v. Govt. of T.N. (2006) 9 SCC 711, Rajesh Gulati v. Govt. of NCT of Delhi (2002) 7 SCC 129 with further exposition that even having the detenu -7- under custody and no bail application is found to be pending, the detention order under the prevention detention law has been declared to be illegal. 8. Now, coming to the facts of the present case, it is evident from counter affidavit more particularly para-9 thereof on behalf of respondent no.1, there is nothing to indicate whether at the time of forwarding the case before Advisory Board, representation filed on behalf of petitioner was ever placed, what to say to consideration. 9. Whether there happens too be mandatory requirement to that extent, for that it looks better to incorporate Section 19 of Bihar Control of Crimes Act. “19. Reference to Advisory Board. – Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 18, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and n case where the order has been made by the District Magistrate mentioned in sub-section (2) of Section 12 also the report by such officer under sub-section (3) of that section”. 10. On bare perusal of the Section, it is evident that there happens to be requirement of placing of representation filed on behalf of detenu before the Advisory Board who was also -8- expected to take into account the same. Mere physical presence of detenu will not exonerate the State from its responsibility to place all the relevant documents as required under Section 19 of the Act before the Advisory Board during course of making reference and having negligence on that part lent utter violation of mandatory provision of law. 11. Consequent thereupon, the detention order dated 28- 08-2012 followed with its approval as well as confirmation vide order dated 04-10-2012 at the end of respondent no.1 is found to be contrary to the mandate of law consequent thereupon are quashed. Petition is allowed. Petitioner is hereby directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) (Aditya Kumar Trivedi, J.) PN/-